STATE v MURDOCK
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No, 12182 I N THE SUPREME COURT O THE STATE OF M N A A F OTN 1972 STATE O MONTANA, F P l a i n t i f f and Respondent, -vs - EDWARD R. MURDOCK, Defendant and A p p e l l a n t , Appeal from: D i s t r i c t Court o f t h e F i r s t J u d i c i a l D i s t r i c t , Honorable V i c t o r H. F a l l , Judge p r e s i d i n g . Counsel of Record: For Appellant : William Dee Morris a r g u e d , Helena, Montana 59601. F o r Respondent: Thomas F. Dowling, County A t t o r n e y , Helena, Montana 59601. L e i f B. E r i c k s o n , Deputy County A t t o r n e y a r g u e d , Helena, Montana 59601. Robert L, Woodahl, A t t o r n e y G e n e r a l , Helena, Montana 59601. J. C. Weingartner, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d , Helena, Montana, 59601. Submitted: J u n e 1 9 , 1972 Mr. J u s t i c e Frank I . Haswell delivered the Opinion of t h e Court. Defendant was convicted of f i r s t degree arson following a jury t r i a l i n the d i s t r i c t court of Lewis & Clark County, Hon. Victor H. F a l l , d i s t r i c t judge. Defendant was subsequently sentenced t o ten years i n the Montana S t a t e Prison and now appeals from t h e judgment of conviction. During the month of June 1971, defendant Edward R . Murdock s t a r t e d t o build a house on a t r a c t of land i n the Helena valley known as the Sewel 1 tracts. B about August 1 the two-story house, 40 x 30 f e e t , was largely y completed but the second f l o o r was unfinished. In the l a t t e r part of July defendant contacted Schroeder Brothers Company, a Helena insurance brokerage firm, t o purchase f i r e insurance on his house. They declined t o s e l l him f i r e insurance a t t h a t time because t h e house was not completed. On August 3 defendant again contacted Schroeder Brothers f o r the same purpose a f t e r the house was completed. Frank Mihel ish of Schroeder Brothers appraised the house a t $25,000 and suggested defendant purchase a f i r e insurance policy i n this amount. Defendant, however, i n s i s t e d on a $35,000 policy which Schroeder Brothers wrote and defendant paid f o r . During defendant's second v i s i t t o Schroeder Brothers he was asked i f there was a mortgage on the house, and he answered i n the negative. On August 6 defendant asked Schroeder Brothers t o add the name of S. F. Parker t o the policy as mortgagor. On August 10, defendant again appeared a t Schroeder Brothers t o check whether his policy was in f u l l force and e f f e c t and was advised t h a t i t was. A f i r e occurred on August 19 about 6:30 a.m. when defendant was not a t home. The house was p a r t i a l l y destroyed by f i r e . The West Valley Fire Department answered t h e f i r e alarm. Upon a r r i v a l they found the house locked and forced the door t o gain entry. During the course of putting out the f i r e and securing the premises, they noted various indications which led them t o believe the f i r e was of incendiary origin and t h a t arson might be involved. They so advised the deputy s t a t e f i r e marshal, Gary Younker. Younker arrived a t defendant's house about 3:00 p.m. and commenced his investigation. He inspected t h e p a r t i a l l y burned house, took pictures, and interviewed witnesses. H gained entry t o the unoccupied house by ree moving the boards from the door which the firemen had used, t o secure the premises when they l e f t a f t e r putting out the f i r e t h a t morning. The investigation by the firemen and deputy s t a t e f i r e marshal Younker revealed t h a t t h e f i r e s t a r t e d in t h e furnace room on the f i r s t floor. Oil soaked rags were stuffed in the wire and control system of the o i l furnace. liquid. The rags led t o two p l a s t i c containers containing a flammable The thermostat on the furnace was s e t a t approximately 75 degrees. When the thermostat clicked on the furnace ignited the rags which i n turn s t a r t e d a blaze i n t h e furnace room which s t a r t e d burning t h e c e i l ing of t h e furnace room. Directly over the furnace room on the f l o o r of the second s t o r y , various v o l a t i l e items were stored--2 f i v e gallon cans of gasoline, 1 twenty-five gallon can of propane w i t h gas escaping from i t , some flammable paint, and two r o l l s of tarpaper. The carpeting i n the house was soaked with oil. The firemen who fought the blaze noted the e n t i r e house was permeated with the odor of o i l . They a1 so observed t h a t a1 1 of t h e wall s were paneled and there was no insulation between the paneling and the outside walls. The firemen and deputy s t a t e f i r e marshal Younker concluded the f i r e was the r e s u l t of arson. Mr. Val Ketchum, who helped i n s t a l l the furnace, indicated t h a t three weeks a f t e r the furnace was i n s t a l l ed, defendant cal led him and to1 d him the o i l l i n e s were leaking. Ketchum checked and found no such leak. About a week l a t e r , defendant again called Ketchum and t o l d h i m t h e r e was "oil running al 1 over t h e place". ting. Ketchum investigated and found two drops of o i l on a f i t - A t this time Ketchum completely checked the furnace and gave i t the seal of approval. The furnace was equipped with various s a f e t y devices which imnedia t e l y shut off the furnace in the event of a malfunction. Ketchum s t a t e d t h e only way the furnace could s t a r t a f i r e such as the one involved here the f i r e would be i f i t were tampered w i t h . H investigated the furnace afterland e found rags jammed i n the e l e c t r i c a l system which damaged the s a f e t y mechanisms, which i n turn resulted i n a continual flow of o i l . H concluded e t h a t t h e furnace had been manually tempered w i t h causing i t t o work i m properly. On the day a f t e r the f i r e , defendant appeared a t Schroeder Brothers, inquired i f the f i r e had been reported, and was taken t o the insurance adj u s t e r t o discuss settlement. I t l a t e r developed t h a t a $40,000 mortgage had been recorded on t h e property running from defendant t o S. F. Parker, the mortgagor. This mort- gage was given t o secure payment of a promissory note f o r $40,000 bearing 6% i n t e r e s t and payable a t the r a t e of $100 per month, including i n t e r e s t . Defendant was both the s o l e payee and t h e s o l e maker on the note. Defendant was charged w i t h f i r s t degree arson by information f i l e d d i r e c t l y i n the d i s t r i c t court. H entered a plea of "not guilty". e Prior t o t r i a l he moved f o r the suppression of c e r t a i n objects and things, allegedl y taken from his house as a r e s u l t of an unlawful search and seizure, and h i s motion was granted. Trial by jury commenced on November 8, 1971. Basically defendant's defense was (1) f a i l u r e of the s t a t e t o prove the essential elements of t h e crime beyond a reasonable doubt, and ( 2 ) a1 i b i . Defendant did not t e s t i f y . During the course of t r i a l the s t a t e was permitted t o examine Jack Parker, husband of the alleged mortgagor S. F. Parker, as an adverse w i t ness. Counsel f o r defendant a l s o represented Parker a t the t r i a l . De- fendant claimed such adverse witness ruling and examination was improper, t h a t the d i s t r i c t court ruled Parker a defense witness, and that defendant was denied the right of cross-examination. Subsequently, defendant attempted t o establ ish his defense of a1 i bi by testimony that he had gone t o Harlowton, Montana, the day before the f i r e ; stayed i n a motel there that night; l e f t the motel the next morning; and did not return to his home in the Helena valley until the day a f t e r the f i r e . Defendant called the motel owner and attempted t o secure admission in evidence of a motel registration card on which his name was printed. The motel owner could not identify defendant as the person who stayed a t the motel. The proferred motel registration card was denied admission in evidence. Defendant was convicted of f i r s t degree arson as charged. H was sene tenced to ten years imprisonment in the s t a t e prison where he now remains. Following denial of various post-trial motions by defendant, he now appeals from the judgment of conviction. Defendant assigns ten issues for review upon appeal which can be summarized in t h i s manner: (1) Was there probable cause to support the f i l i n g of a d i r e c t information? (2) Was evidence secured as the r e s u l t of an unlawful search and seizure used a t the t r i a l to procure defendant's conviction? (3) Was evidence relating to insurance and c r e d i t improperly ad- mitted a t the t r i a l ? (4) Did the d i s t r i c t court e r r in denying defendant's motion f o r a directed verdict of acquittal? (5) Was the motel registration of defendant improperly denied ad- mission in evidence? ( 6 ) Was there error in jury instructions? ( 7 ) Was there a f a t a l variance between the crime charged and the proof? Insufficiency of the evidence t o overcome the presumption (8) of innocence? (9) Did the d i s t r i c t court erroneously apply the law of arson in i t s p r e t r i a l , t r i a l , and post-trial rulings? (10) Did the d i s t r i c t court e r r i n declaring witness Jack Parker an adverse witness, in requiring t h e defendant t o accept t h i s witness as a defense witness, and i n openly quarrelling w i t h defendant's counsel in t h e presence of the jury over t h i s issue? Directing our attention t o the f i r s t issue, we hold there was probable cause t o support the f i l i n g of a d i r e c t information. Deputy s t a t e f i r e marshal Younker t e s t i f i e d under oath i n open court i n support of the s t a t e ' s motion f o r leave t o f i l e t h e information d i r e c t . s c r i p t of h i s testimony is included i n the court f i l e . the following f a c t s a r e established: permeated t h e house. From h i s testimony (1 ) The smell of petroleum products ( 2 ) Oil soaked rags had been placed i n the f i r e chamber of the furnace. fuel o i l . A complete tran- ( 3 ) These rags ran down i n t o two containers of (4) The thermostat on t h e furnace had been s e t f o r approximately 75 degrees on a summer day i n August. (5) The house was over-insured. ( 6 ) Defendant owed b i l l s a l l over town f o r construction materials. house was mortgaged f o r $40,000. ( 7 ) The (8) The monthly payments on the mortgage would cover only half the i n t e r e s t accrued during the f i r s t year and l e s s than t h a t i n subsequent years. with fuel o i l . (9) The carpeting i n the house was soaked (10) There were substantial amounts of gas01 ine, propane, flammable paint and tarpaper l ocated d i r e c t l y above the furnace room. The house was locked and defendant had the only keys. (1 1 ) (12) The f i r e was the r e s u l t of arson. (13) The f i r e was arranged t o occur during the e a r l y morning hours when defendant was absent. questionable. (14) The mortgage and promissory note were These f a c t s a r e abundantly s u f f i c i e n t t o establish probable cause f o r f i l i n g a d i r e c t information charging defendant w i t h f i r s t degree arson. See State v. Dunn, 155 Mont. 319, 472 P.2d 288; State v. Johnson, 149 Mont. 173, 424 P.2d 728; State v . Peters, 146 Mont. 188, 405 P.2d 642; and section 95-1301, R.C.M. 1947, f o r the procedural and substantive re- quirements f o r establishing probable cause. the Onlsecond issue, defendant claims that Gary Younker, the deputy s t a t e f i r e marshal, entered defendant's house without a search warrant f o r the purpose of securing evidence t o establish arson and while there he took pictures and removed certain items of physical evidence. Defendant contends the use of such evidence a t the t r i a l , despite the c o u r t ' s previous ruling to suppress t h i s evidence, constitutes an unreasonable search and seizure in violation of Article 111, Section 7 of the Montana Constitution and the Fourth Amendment to the United States Constitution . A t the outset we observe that Montana s t a t u t e s grant the deputy s t a t e f i r e marshal the r i g h t t o do what he did here. to inspect a l l f i r e s . Section 82-1209, R.C.M. 1947. H has the authority e H i s granted the power" e to inspect and examine a l l buildings where a f i r e has occurred. 1217, R.C.M. 1947. Section 95-701(d), R.C.M. Section 82- 1947, provides t h a t a search is lawful i f done within the scope of a right of lawful inspection granted by law. The items of physical evidence he secured from the premises were suppressed and not used a t the t r i a l . The pictures he took and his testimony concerning his inspection and examination of the premises were admitted in evidence. Thus i t i s clear t h a t the deputy s t a t e f i r e marshal was not re- quired to secure a search warrant to do t h i s under the foregoing s t a t u t e s , and t h a t the evidence was admissible pursuant to such statutory authority. The real question here, however, is whether t h i s s a t i s f i e d s t a t e and federal constitutional requirements of a search warrant and the prohibition against unreasonable searches and seizures. W hold t h a t the better reasone ing supports the view t h a t what occurred i n the instant case does not violate such constitutional requirements. Younker's testimony as t o what he saw and discovered a t the time of his inspection i s admissible under the "open f i e l d s " doctrine. State v. Perkins, 153 Mont. 361, 457 P.2d 465; Romero v. Superior Court, 72 Cal.Rptr. 430, 266 C.A.2d 714. Furthermore, the constitutional prohibi- tions are designed t o protect a person's right t o privacy; i t can hardly be contended t h a t the right t o privacy in a partially burned dwelling a f t e r a f i r e i s paramount t o the right of the public t o a reasonable inspection of premises damaged by f i r e in the interests of pub1 i c safety and detection of incendiary f i r e s . B u t perhaps the most compelling reason of a l l i s simply that probable cause for the issuance of a search warrant could seldom be establ ished i f access t o f ire-damaged premises is denied without a search warrant. The third issue i s whether evidence relating to insurance and c r e d i t was properly admitted. Testimony was permitted a t the t r i a l tending t o prove that defendant was indebted t o several businesses f o r construction materials and supplies, that liens had been f i l e d , t h a t f i r e insurance in excess of the value of the house had been procured, that a questionable mortgage and note had been executed relating t o the premises, and l i k e matters. This evi- dence is admissible t o show defendant's motive f o r the crime charged. Al- t h o u g h motive i s not an element of the crime, motive or lack of motive i s a circumstance tending to establish g u i l t or innocence. State v. Hollowell, 79 Mont. 343, 256 P. 380; State v. Simpson, 109 Mont. 198, 95 P.2d 761. The jury was so instructed by court's instruction No. 16. There was no error here. Defendant's fourth issue f o r review i s whether defendant's motion for a directed verdict of acquittal a t the conclusion of the s t a t e ' s case-inchief should have been granted. Defendant contends the s t a t e failed t o prove beyond a reasonable doubt three essential elements of the crime of f i r s t degree arson: (1) t h a t the f i r e was of human incendiary origin; (2) t h a t defendant s e t the f i r e , and (3) t h a t defendant was actuated by malice. From what has been reviewed heretofore, i t i s beyond cavil t h a t the f i r e was of human incendiary origin. I t i s equally clear there i s substantial evidence t h a t defendant caused the house t o be burned. This i s equivalent t o setting the f i r e under Montana's f i r s t degree arson s t a t u t e , section 94-502, R.C.M. 1947, which reads i n pertinent part: "Any person who willfully, feloniously and maliciously s e t s f i r e t o or burns o r causes t o be burned or who aids, counsels or procures the burning of any dwelling house * * * shall be guilty of arson in the f i r s t degree ** **'I To be sure the evidence is circumstantial, as in most arson cases. Nobody saw defendant s t a r t the f i r e or saw him prepare the premises f o r the f i r e t h a t resulted. B u t the evidence does show that: defendant was the sole occupant of the house; he had the only keys to the house; there were no signs of forced entry into the house; the house was prepared for a f i r e by jamming the safety devices and electrical c i r c u i t in the furnace w i t h o i l y rags leading t o containers f i l l ed with volatile 1iquids; gas01 ine, propane, and other flammable materials were placed on the floor directly above the furnace; the thermostat was s e t t o f i r e the furnace i n the early morning hours when the temperature on the inside of the house f e l l below 75 degrees; the rugs i n the house were soaked w i t h o i l ; the furnace had manually been tampered w i t h t o cause i t to malfunction and emit a continuous flow of oil when i t turned on; and defendant, t o the exclusion of anyone else, had both the motive and opportunity t o burn the house down. Such circumstantial evi- dence i s sufficient t o establish t h a t defendant caused the f i r e . That defendant s e t the f i r e maliciously i s also established beyond a reasonable doubt by the foregoing circumstantial evidence. Malice in law may be e i t h e r express or implied and consists of willful and wanton destruction of the house by f i r e . The foregoing circumstantial evidence i s s u f f i - cient t o establ ish imp1 ied ma1 ice beyond a reasonable doubt i f be1 ieved by the jury, which precludes a directed verdict of an acquittal. This Court previously held in State v. Yoss, 146 Mont. 508, 514, "A directed verdict in a criminal case in this jurisdiction is given only where the State fails to prove its case and there is no evidence upon which a jury could base its verdict." Here, the evidence in the state's case-in-chief meets this test, Accordingly the district court's denial of defendant's mot.ion for a directed verdict of acquittal was correct. Defendant's fifth issue is that the trial court erred in refusing the motel registration slip in evidence. This evidence was offered through Mabel Blaquire, the operator of the Troy Motel in Harlowton, Montana, who was called as a defense witness to establish the presence of defendant there during the night of August 19, when his house in the Helena valley was burned. It was denied admission in evidence on the grounds of improper foundation and irrelevance. Mrs. Blaquire testified that she could not identify the defendant as the person who signed the motel registration or occupied the motel room. The registration contained no written signature, but did contain the printed name of defendant. It also contained a truck license number and description that was not connected up with defendant. Although the motel registration was undoubtedly a business record, it did not tend to prove or disprove any issue in the case. The identity of defendant as the person who printed the name on the motel registration was never established. Even if it be assumed that defendant was that person, his physical presence there would not tend to establish an a1 ibi under the circumstances in which the fire started in this case. It does not tend to prove or disprove any issue in the case. As such it is entirely irrelevant, in addition to lack of proper foundation for its admission. The district court was correct in denying its admission in evidence. The sixth issue raised by defendant pertains to jury instructions. Neither his brief nor oral argument discloses e i t h e r what instructions given were incorrect or what proposed instructions should have been given. K Under such circumstances any objection t o jury instructions i s waived, and there is nothing f o r us t o decide. Defendant's seventh issue concerns whether there i s a f a t a l variance between the crime charged and the proof a t the t r i a l . H argues t h a t the e crime charged i s f i r s t degree arson and the proof a t the t r i a l was directed a t proving the burning of a building t o defraud an insurer, a separate and d i s t i n c t crime. From what has been said heretofore, the elements of the crime of f i r s t degree arson were established as a jury question by the s t a t e ' s proof. The f a c t that the same proof might also tend t o establish a d i f f e r e n t crime, i .e. burning a building to defraud an insurer, in no way establishes a var- the iance betweenlcrime charged and the proof. The insurance feature of t h i s case tends to establish a motive f o r the crime of f i r s t degree arson with which defendant was charged. A defendant was neither charged nor convicted of s burning a building t o defraud an insurer, no variance i s established. Issue eight questions the sufficiency of the evidence t o overcome the presumption of innocence w i t h which defendant i s clothed throughout the t r i a l . The circumstantial evidence previously discussed and held t o be s u f f i c i e n t t o convict rebuts any such presumption of innocence t h a t might otherwise prevai 1 . T h i s contention i s t o t a l l y devoid of substance and merits no further discussion. Defendant's issue nine contends t h a t the d i s t r i c t court erroneously applied the law of arson i n i t s rulings on p r e t r i a l , t r i a l , and post-trial motions of defendant. If we properly understand defendant ' s argument, he con- tends t h a t the admission of inadmissible, irrelevant and prejudicial evidence unrelated t o the elements of the crime of f i r s t degree arson prevented him from having a f a i r t r i a l . Defendant refers t o the admission of photographs taken by the deputy s t a t e f i r e marshal on his inspection of the house a f t e r the f i r e , to evidence of defendant Is indebtedness f o r construction materials , and t o the procuring of f i r e insurance on the house. Heretofore, we have held the photographs properly admissible. W have e also held t h a t evidence relating to defendant's indebtedness and the f i r e insurance on his house was properly admitted t o show motive f o r the crime charged. These holdings render the present contention of defendant t o be without foundation. The tenth and final issue f o r review concerns the witness, Jack Parker. Defendant contends the d i s t r i c t court comitted prejudicial error in declaring Parker an adverse witness, i n requiring the defendant t o accept Parker as a defense witness, and i n openly quarrelling with defendant's counsel i n the presence of the jury over t h i s issue. I t must be noted that defendant's attorney was also the attorney f o r witness Parker. Defense counsel drew the mortgage i n question and advised witness Parker r e l a t i v e to his privilege against self-incrimination a t the trial. Prior t o the t r i a l the s t a t e secured an order from the court requiring Parker t o submit to a deposition. The record shows that Parker was very hesitant t o t e s t i f y and the s t a t e had considerable d i f f i c u l t y in getting him t o answer questions r e l a t i v e t o the circumstances leading t o the $40,000 note and mortgage and the consideration f o r i t s execution. Parker was subpoenaed as a witness f o r the s t a t e a t the t r i a l . When he was called by the s t a t e t o the witness stand a t the t r i a l , the transcript indicates he was called as an adverse witness. Prior t o the s t a t e ' s exarn- ination, Parker was advised by defense counsel t o refuse to answer any questions on the grounds of possible self-incrimination. H claimed t h i s r i g h t e several times during the course of the s t a t e ' s examination. When the s t a t e concluded i t s examination and witness Parker was turned over t o defense counsel f o r questioning, the fol 1owing coll oquy occurred between defense counsel and the court: "DIRECT EXAMINATION "By Mr. Morris: "Q. Mr. Parker, prior to the time this fire occurred, you came down to see me about the insurance on the mortgage? A. Yes. "Q. And we found out that Murdock had been charged with a crime. By the way, may the record show that the fact I honor this examination with c ross-examination, doesn ' t mean I accept i t, Your Honor. "THE COURT: What is that? "MR. MORRIS: Object to it, but I will still cross-examine because I have the right to and I think a duty to. "THE COURT: I don't follow you. This is your witness. "MR. MORRIS: He is not my witness. The state called him. "THE COURT: As an adverse witness. You said you represented him. Now you are on direct examination at this time. You don't cross-examine crossexamination. "MR. MORRIS: May we have an offer of proof, Your Honor, in this matter? "THE COURT: Yes, you may later on. "MR. MORRIS: Before I cross-examine? "THE COURT: Before you cross-examine? "MR. MORRIS: Yes, "THE COURT: You can ' t cross-examine cross-examination. "MR. MORRIS: I want to make an offer of proof. "THE COURT: You may make one at recess. If you examine this witness, it's direct examination on your part. I have established that he is an adverse witness to the State, and if you examine him now, it's direct examination and you are bound by his answers. "MR. MORRIS: May the record show an objection to that rul ing? "THE COURT: Sudy. I' On this basis defendant claims prejudicial error. W consider t h i s e n t i r e matter a tempest in a teapot. e Assuming arguendo t h a t the adverse witness rule i s not applicable to criminal proceedings, only harmless error not affecting the substantial rights of the defendant is involved; such harmless error i s not grounds f o r reversal. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L ed 2d 705; State v . Langan, 151 Mont. 558, 445 P.2d 565. Witness Parker was not examined by the s t a t e by use of leading questions. Whether the s t a t e was bound by his answers i s irrelevant here, be- cause the witness gave no testimony unfavorable t o the s t a t e . Defendant was denied the right of cross-examination of t h i s witness under the adverse witness rule and was compClled by the rul ing of the t r i a l judge t o examine the witness on d i r e c t examination as his own witness. But what prejudice resulted t o defendant? W find none under the circumstances e disclosed here. Defendant was accorded the f u l l right of examination of this witness unfettered by the confines of the s t a t e ' s examination. Defend- a n t ' s examination of the witness in t h i s manner was broader than his examination rights under cross-examination t o which he contends he was e n t i t l e d . During this examination the defendant brought out circumstances attending the execution of the note and mortgage which, i f believed by the jury, were favorable t o defendant. Nor do we see how the colloquy between the court and counsel over the adverse witness rule and defendant's rights of examination of witness Parker prejudiced defendant i n the eyes of the jury. In any event a colloquy cannot be carried on by the t r i a l judge alone, and where defendant's counsel participates therein he can hardly be said t o be an innocent bystander. f a i l t o see how defendant has a meritorious cause for complaint on t h i s score. The judgment of the d i s t r i c t court is affirmed. W e Associate Justice \ Associate Justices
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